Rodgers and Repatriation Commission - [2002] AATA 782

DECISION AND REASONS FOR DECISION [2002] AATA 782

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V1999/1468
  Nº V1999/1469
GENERAL ADMINISTRATIVE DIVISION
  Re:         JOHN ALEXANDER RODGERS
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             10 September 2002
Place:            Melbourne

Decision:The Tribunal sets aside the decision of the respondent (as affirmed by the Veterans' Review Board on 20 October 1999) in respect of lumbar spondylosis and substitutes the decision that lumbar spondylosis is defence-caused. In all other respects the Tribunal affirms the decisions under review in regard to the claims for entitlement.
Pension is payable at 90% of the general rate, with effect from 8 July 1997.

(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS – entitlement – incapacity – whether correct assessment of service pension – rotator cuff syndrome – lateral epicondylitis – asthma – hypermetropia – osteoarthrosis - whether war-caused – whether defence-caused - whether Statements of Principles satisfied
Veterans' Entitlements Act 1986 ss70, 119
Repatriation Commission v Budworth (2001) 66 ALD 285

REASONS FOR DECISION

10 September 2002 M.J. Carstairs, Member

This is a hearing of two applications by John Alexander Rodgers (the applicant) for review of a decision made by the Veterans' Review Board (the VRB) on 20 October 1999. The VRB decision affirmed the decision by the Repatriation Commission (the respondent) dated 16 April 1998, that the applicant's conditions of rotator cuff syndrome, lateral epicondylitis, asthma, hypermetropia, back problems and osteoarthrosis were not related to war service and increased pension to 60% of the General Rate.
At the hearing, Mr D.F. Hyde of counsel, instructed by De Marchi & Associates, solicitors, represented the applicant. Mr G. Purcell of counsel, instructed by the Department of Veterans' Affairs, represented the respondent.
The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The Tribunal also had before it exhibits marked A1 to A5 for the applicant and R1 to R7 for the respondent.
BACKGROUND
The applicant is aged fifty-four years. He served in the Australian Army (the army) from 17 July 1968 to 16 July 1970. He served in Vietnam from 16 February 1970 to 15 May 1970 and this is operational service under the Veterans' Entitlements Act1986 (the Act). He rejoined the army on 27 March 1974 and served to 30 November 1992. This service is eligible defence service under the Act.
Following discharge from the army, the applicant obtained employment with a company that operated the target range at Puckapunyal on a private basis. The applicant was the leading hand target operator. This was the same work that he had undertaken as part of his army career.
On 8 October 1997 the applicant lodged his claim. The respondent accepted the conditions of alcohol abuse or dependence, generalised anxiety disorder and chronic solar skin damage. Pension was increased to 40% of the General Rate. On 8 May 1998 the applicant sought review with the VRB in regard to the claims that had been refused by the respondent, namely:
Rotator cuff syndrome right shoulder
Lateral epicondylitis (bilateral)
Asthma
Hypermetropia (both eyes)
Osteoarthrosis of left acromioclavicular joint
Back problems
The VRB affirmed all decisions on entitlement. On 21 December 1999 the applicant appealed to the Tribunal. The claims for the conditions of hypermetropia (both eyes), osteoarthrosis of the left acromioclavicular joint, and asthma were withdrawn. After the hearing, because a new Statement of Principles (SoP) (Instrument Nº 47 of 2002) issued for lumbar spondylosis, the respondent conceded that the applicant was entitled to have that claim accepted. The Tribunal accepts that the applicant's lumbar spondylosis is related to his service as the matters raised in the applicant's claim fit within the new SoP for lumbar spondylosis.
EVIDENCE
The applicant gave oral evidence that he was posted to an army transport unit and trained as a truck driver. He was posted to Hollingsworth, to 1 Transport Squadron. He had various postings in his army career and was often engaged in heavy duties. In the 1980s, he was posted to Sydney, to 18 Transport Squadron, where he loaded and unloaded stores and heavy fuel drums, for a period of three years. When he was next posted as a transport supervisor, the work was not so physical and involved more paperwork.
When he was posted to Puckapunyal, a posting eight years prior to the end of his service, he was again engaged in heavy physical work. He loaded and unloaded targets on the range that required a two-man lift. He was loading and unloading these targets onto six-wheel-drive, tray trucks, at chest height and above. He also had to refuel the moving target system, which involved lifting and unloading 44-gallon drums of fuel. He said these duties were on a daily basis (and sometimes at night), for a period of eight years.
The applicant said that there were times when he felt sore in the back, but he mostly just got on with it. He could not recall when his elbow problem developed, nor could he recall how he hurt his shoulder. He said he woke up one morning and they were hurting. He said that he does no heavy work now. He attributed his medical conditions to his service at Puckapunyal. He acknowledged, under cross-examination, that he must have told Dr Dooley, when examined by the doctor in May 2000, that he had not suffered any injury to his shoulders or elbows while on service. He agreed that he had said that he woke up one morning about two years prior to 2000 with sore elbows and shoulders.
In a written report dated 20 July 2001 (exhibit A1), Mr R. McArthur, orthopaedic surgeon, stated that the applicant had told him that the heavy lifting on the target range had placed considerable stress on his shoulders and both elbows. The applicant told him that lifting above the horizontal caused him pain. The applicant told him that he noticed discomfort to the front of the elbow, the biceps tendon, the outer aspect of the left elbow (but not the right). Mr McArthur diagnosed the shoulder complaint as rotator cuff syndrome, which he related to heavy lifting. He stated that the elbow complaint was distal bicipital tendonitis, with left lateral epicondylitis. He related this also to heavy lifting.
In oral evidence, Mr McArthur said that the distal bicipital tendonitis involved inflammation of the lower end of the biceps tendon brought on by repetitive movements. Mr McArthur explained that the left lateral epicondylitis was a tendonitis on the common extensor muscle, due to repetitive lifting. He said that rotator cuff syndrome is a tendonitis that generally occurs where a person is engaged in heavy lifting. He said that the applicant told him that he had shoulder pain loading and unloading heavy vehicles at Puckapunyal. Mr McArthur said that tendonitis was episodic in nature. The conditions would settle at times and become acute at others.
In a written report dated 2 June 2000 (exhibit R1), Mr B. Dooley, orthopaedic surgeon, said that the applicant had told him that he had no problems or injury to his shoulders and elbows while in the army and that the onset of problems with both was two years previously. Mr Dooley stated that he found no abnormality in either shoulder, although he noted some thickening of the left acromio-clavicular joint consistent with mild arthritic change. The right shoulder was normal. He considered that the applicant had a mild extensor epicondylitis. He said that the shoulder and elbow conditions had come on spontaneously within the previous four years. When Mr Dooley next reported, on 14 November 2001 (exhibit R2), he found a slight limitation of the right shoulder, although with no evidence of rotator cuff tendonitis in either the left or right rotator cuff. He found, on the second examination, some limitation of range of shoulder movement. In this second report Mr Dooley said the applicant did not have lateral epicondylitis in either elbow.
In oral evidence Mr Dooley said that he had questioned the applicant several times about onset and the applicant confirmed that it was in 1996/1997 that he first experienced shoulder problems. Under cross-examination, Dr Dooley observed that, as to epicondylitis or bilateral tendonitis, while the applicant might have it intermittently, the applicant did not have it when Mr Dooley saw him, as he would need to be complaining of pain in the anterior aspect of the elbow. He agreed with Dr S. Hall, Clinical Associate Professor of Medicine, that it was clinically very mild, if present at all.
In his written report, dated 22 August 2000 (exhibit A2), Dr Hall stated that the applicant had normal shoulder movement but tenderness over the left acromioclavicular joint. While Dr Hall noted tenderness over the lateral epicondyles, he said that tests were negative. He diagnosed muscular and postural problems as the cause of pain in the shoulders and ruled out rotator cuff syndrome. Dr Hall considered that the applicant had minimal evidence of bilateral lateral epicondylitis.
CONSIDERATION OF ISSUES
Subsection 70(1) and (5) of the Act provide as follows:
70(1) Where:
(a)…
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)…
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
…
(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
Mr Hyde submitted that the period of operational service played little or no part in regard to the claims before the Tribunal. He submitted that the applicant was relying on the period of his defence service, ending in 1992. He submitted that Mr McArthur's diagnosis of rotator cuff syndrome should be accepted, especially as he had spent more time examining the applicant than had either Dr Hall or Mr Dooley. Mr Hyde submitted that Mr McArthur's diagnosis of bicipital tendonitis with left lateral epicondylitis should be accepted. He submitted that this was supported by Mr Dooley's oral evidence that lateral tendonitis showed in a mild form at the second examination. He also submitted that Dr Hall, in stating minimal evidence of lateral epicondylitis bilaterally, reflected that the condition was present.
Mr Hyde submitted that s119 of the Act allowed the applicant to be given some benefit for the passage of time and for matters that he had difficulty recalling.
Mr Purcell submitted that if a diagnosis of rotator cuff syndrome was accepted, the Tribunal could not be satisfied that clinical onset was a date earlier than 1996 or 1997. With the onset being after defence service, he submitted that the factors in the two relevant SoPs for rotator cuff syndrome, (Instrument Nº 6 of 1996 and Instrument Nº 84 of 1997) could not be met. Therefore, the condition of rotator cuff syndrome could not be related to defence service through raising a connection that is set out in a SoP.
Mr Purcell submitted in relation to the elbow condition that the evidence was that clinical onset was several years after service. As the applicant had exhibited no symptoms or episodes during the period 1992 to 1996, the condition of the elbow was more likely related to his post-service work. The parties agreed that there was no SoP in place in regard to the elbow condition.
In reaching its decision, the Tribunal takes into account the written and oral evidence and submissions made at the hearing. No evidence was led from the period of the applicant's operational service. The Tribunal accepts that the claim relies on the period of defence service and, in particular, the nature of the heavy duties in which the applicant was engaged. As the claims were lodged after 1994 the Tribunal must apply s120B of the Act and must decide matters to its reasonable satisfaction in accordance with any SoP issued by the Repatriation Medical Authority.
In Repatriation Commission v Budworth (2001) 66 ALD 285, the Full Court of the Federal Court held that the decision-maker has to identify the collection of relevant symptoms which constitute the diseases and must decide to the standard of reasonable satisfaction whether there is a disease as claimed.
In regard to rotator cuff syndrome the evidence of Mr Dooley and of Dr Hall was that the applicant did not suffer from rotator cuff syndrome. Mr McArthur considered that the shoulder complaint was a bilateral rotator cuff syndrome, although in the left shoulder there was evidence of osteoarthrosis of the left acromioclavicular joint. Dr Hall considered that the source of the shoulder problem was postural. The Tribunal prefers the evidence of Mr Dooley and Dr Hall, that the applicant does not have rotator cuff syndrome, and it is reasonably satisfied that the condition is not present. The claim for rotator cuff syndrome is therefore rejected.
There is no SoP for lateral epicondylitis (bilateral). Where there is no SoP declared for a particular injury or disease, the decision-maker must decide the claim, where it relates to eligible defence service, to its reasonable satisfaction (s120(4) of the Act).
In regard to lateral epicondylitis (bilateral), Mr Dooley, in his first report, found slight tenderness but no swelling around the lateral epicondyle. In his second report in 2001, he did not find lateral epicondylitis in either elbow. Dr Hall found that, apart from the evidence of minor osteoarthritic changes in the left acromioclavicular joint, x-rays showed the shoulders and elbows as normal. He said there was minimal evidence of lateral epicondylitis bilaterally, but did not rule it out. Mr McArthur did not find bilateral lateral epicondylitis, only left lateral epicondylitis, but found (bilaterally) a tendonitis of the distal biceps tendon. The Tribunal prefers the diagnosis of lateral epicondylitis (bilaterally), but recognises that the medical opinions are in agreement that there is some slight, intermittent problem in the elbow area that is likely related to overuse.
The Tribunal is reasonably satisfied that the elbow condition arose after the applicant's relevant service, when he worked at the target range. The Tribunal accepts that the applicant was not doing as much heavy work at the target range after his service years as he was during them. However, the period of some three to five years between the end of service and the onset of the condition, which the Tribunal accepts on the evidence of Dr Hall and Mr Dooley as being in 1996 or 1997, is too lengthy to be related to the applicant's defence service. The applicant has given that history of onset also to Dr Hall. Mr McArthur's report is of little assistance in regard to onset as he speaks generally of the applicant's heavy work on the target range, and does not differentiate clearly between work at the target range during service and that undertaken post-service. Mr McArthur acknowledged this in cross-examination. His report does not address the question of clinical onset and he did not have the history of onset given by the applicant to Dr Hall and Mr Dooley. The claim for the elbow condition is, therefore, rejected.
On the question of assessment, the Tribunal accepts the respondent's submission, made by letter dated 12 August 2002, conceding the claim for lumbar spondylosis. In the respondent's submitted assessment in the letter dated 12 August 2001, lumbar spondylosis should be assessed under Table 3.3.1 at 20 points and Table 3.4.1 at 5 points. That submission added to the respondent's statement of facts and contentions on accepted disabilities (exhibit R6) and the combined impairment assessment (exhibit R4). The assessment, which agreed with the applicants suggested assessment for the knee right wrist solar skin damage and anxiety disorder, (exhibit A4) was as follows:

Chrondromalacia patellae Table 3.2.2 20 points
Table 3.4.1 5 points
Osteoarthrosis right wrist Table 3.1.2 10 points
Generalised anxiety disorder and alcohol abuse Table 4 19 points
Solar skin damage Table 11.1 NIL

The rating of lumbar spondylosis is consistent with Dr Hall's evidence (exhibit A2), that the applicant had restriction in forward flexion, lateral flexion and extension. The Tribunal accepts the respondent's submission that lumbar spondylosis be rated as 20 points under Table 3.3.1 and 5 points under Table 3.4.1. With these ratings, the appropriate rate of pension is 90% of the general rate, with a date of effect of 8 July 1997.
DECISION
The Tribunal sets aside the decision of the respondent (as affirmed by the Veterans' Review Board on 20 October 1999) in respect of lumbar spondylosis and substitutes the decision that lumbar spondylosis is defence-caused. In all other respects the Tribunal affirms the decisions under review in regard to the claims for entitlement. Pension is payable at 90% of the general rate, with effect from 8 July 1997.
I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  19 March 2002
Date of Decision:  10 September 2002
Counsel for the applicant:           Mr D.F. Hyde
Solicitor for the Applicant:           Messrs De Marchi and Associates
Counsel for the Respondent:       Mr G. Purcell
Advocate for the Respondent:     Advocacy Section, Department of Veterans' Affairs